Keeping Them Honest: the case for a genuine national integrity commission and other vital democratic reforms

By Stephen Charles, Catherine Williams and Gerard Brennan

A revealing and compelling case for the establishment of a strong national anti-corruption body and the enactment of other vital democratic reforms.

Over the last few years, instances of the federal government spending taxpayers’ money to gain improper political advantage in elections have continued, with many hundreds of millions of dollars being spent on the Community Sport Infrastructure Program (aka the Sports Rorts) and the Urban Congestion Fund (the Carpark Rorts). As Stephen Charles writes, these electorally targeted pork-barrelling exercises are better understood as political corruption, which can take many forms but essentially involves dishonest conduct that undermines trust in our democratic political system.

Keeping Them Honest points to the crucial absence of a federal integrity commission to expose corruption in government and public administration, and to hold wrongdoers to account. While the federal government promised to establish such a commission in 2018 (a promise since abandoned), Stephen Charles argues that, in any case, its insipid terms would protect — rather than expose — ethical breaches by federal politicians.

As well, as Catherine Williams reveals, there is an overwhelming need to deal with the dark side of Australia’s political system: the hidden influence of political donors and lobbyists, including the revolving door between lobbyists and former ministers; the absence of controls on electoral expenditure and political advertising; and the cavalier, unregulated expenditure of public money.

Keeping Them Honest explains what we need to do to expose political corruption, uphold accountability, and restore trust — and why we need to do it now.

• Language: English
• Publisher: Scribe Publications
• Release date: Mar 29, 2022
• ISBN: 9781922586438

Stephen Charles

After a distinguished career at the Victorian Bar and as a Judge of Appeal in the Supreme Court of Victoria, Stephen Charles AO, QC, is now a board member of the Accountable Round Table and the Centre for Public Integrity. He has been for many years a tireless advocate for the creation of a federal anti-corruption watchdog.

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KEEPING THEM HONEST

After a distinguished career at the Victorian Bar and as a Judge of Appeal in the Supreme Court of Victoria, Stephen Charles AO, QC, is now a board member of the Accountable Round Table and the Centre for Public Integrity. He has been for many years a tireless advocate for the creation of a federal anti-corruption watchdog.

Catherine Williams is an adjunct research fellow in the School of Humanities and Social Sciences at La Trobe University, where she has lectured and tutored. She holds degrees in Arts and Law and a PhD from La Trobe, and is now research director of the Centre for Public Integrity.

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Published by Scribe 2022

Copyright © Stephen Charles and Catherine Williams 2022

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978 1 922585 64 6 (paperback)

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CONTENTS

Foreword by Sir Gerard Brennan AC

Acknowledgements

Introduction

Part I: The Long Road to a National Integrity Commission

1 East Timor: betrayal and cover-up

2 Historical Cases of Corruption

3 The New South Wales Model: the Independent Commission Against Corruption

4 The Victorian Model: the Independent Broad-based Anti-corruption Commission

5 The Risks of Corruption in the Federal Arena

6 Genuine v Phony: competing design principles for a national integrity commission

7 The Case for Public Hearings

8 The Sports Rorts

9 The Carpark Rorts

Part II: The Case for Other Vital Democratic Reforms

10 Behind the Scenes: how to limit secret influence

11 Stopping the Lies: how to protect the integrity of elections

12 Cutting Out the Pork: how to reform the expenditure of public money

Conclusion

Appendix: The Carpark Rorts: election commitments or spending decisions?

Notes

Foreword

by Sir Gerard Brennan AC, KBE,

former chief justice of the High Court of Australia

This is a disturbing book. It is meant to be. The authors have listed a series of corrupt activities charting a decline in the integrity of Australian public and political life. Corruption has flourished. At the Commonwealth level, there is evidence that decisions involving the expenditure of large amounts of money have been made to secure political advantage without complying with the ‘value for money’ requirement of section 71 of the Public Governance, Performance and Accountability Act 2013. Sadly, the community has been rather tolerant of this decline. This book may enliven the community conscience and lead us to insist on integrity in public life.

In earlier times, when the community expected higher standards in public and political life, the political system itself provided some mechanism for controlling corruption. If some element of corruption was attributable to one political party, the opposing political party was eager to expose it. Exposure gave a political advantage, as it appealed to the community’s sense of integrity. Integrity was a political strength; it commanded community support, and it was embraced by leading politicians and career public servants. There were occasional lapses, but, as a system, it served the community well.

But integrity has been sapped by political ambition and by the seeking of party and personal benefits. Private interests have increasingly influenced political and administrative action. Legality has taken the place of morality in defining the permissible limits of political and administrative action. The decline in standards opens the way to corruption, and the absence of a political mechanism for alerting the community to corrupt conduct facilitates the concealing of corrupt practice.

Corruption can be stemmed if the community is made aware that public assets are being acquired improperly by private interests, or that public duties are being performed to benefit private interests improperly. This book describes attempts that have been made and opportunities that have been neglected for creating mechanisms that might expose corruption, identify its participants, and offer some prospect of remedy. The creation of such a mechanism is not a simple exercise.

The authors are alive to the risk that reputational damage to the persons or institutions involved in an inquiry may be inflicted unjustly by public and privileged hearings. They are conscious that great care is needed in determining the terms of reference under which an inquiry must function. Accordingly, the book reproduces the design principles for a national commission recommended by the National Integrity Committee (a group of retired judges).

In December 2018, 34 former judges wrote a letter to the prime minister expressing their support for the establishment of a national integrity commission with the power to hold public hearings. Regrettably, no legislative action has been taken. Instead, there has been a flow of political rhetoric aimed at securing success at the forthcoming poll — a result that would deny the prospect of any substantial Commonwealth reform.

Judges and former judges do not usually enter the public political arena. The judiciary does not have a political agenda. Its function is to resolve disputed facts and to apply the law to the facts as found, unaffected by political influence. Lest intervention on political issues might seem inconsistent with political independence, even former judges usually abstain from political comment. But corruption that erodes honest administration and the disregard of the rule of law in the pursuit of political power are not issues about which former judges must or should be silent. They are issues that affect the social health of the community.

The authors, a distinguished former appellate judge and the research director at the Centre for Public Integrity, have shown the extent of maladministration in our public affairs. We are indebted to them for a book that is a timely reminder of the community’s need for higher moral standards and for more publicity, transparency, legitimacy, and integrity in the conduct of our public affairs.

Acknowledgements

Three of the chapters in this book — chapters 10, 11, and 12, comprising Part II — were written by Dr Catherine Williams, the principal research officer of the Centre for Public Integrity. They reveal the dark side of Australia’s political system, and provide additional reasons why a national integrity commission is needed.

Chapter 10 suggests solutions to the problems raised by political donations and the influence that can be brought to bear by political donors, especially in the form of hidden money that the major parties rely on; to the threats posed by unregulated lobbying and the ‘revolving door’ between lobbyists and former ministers; and to the lack of transparency in ministers’ meetings and dealings.

Chapter 11 deals with the need for caps on electoral expenditure, and for truth in political advertising.

Chapter 12 deals with the role of the auditor-general and limitations on the Australian National Audit Office’s mandate and ability to audit expenditure by the executive on matters such as grants, and the potential for a government to misuse grants as a means of pork-barrelling.

Each of these chapters provides a significant contribution to knowledge about what goes on behind the scenes between elections, and about the constitutional and statutory limitations on the executive’s ability to use and misuse taxpayers’ money that are regularly sidestepped. I am very grateful to Dr Williams for taking up the challenge to write these chapters, a consolidation and elaboration of her work at the Centre for Public Integrity, and in joining me in co-authorship of this book.

My chapters on Timor and the Independent Commission Against Corruption, and the Conclusion, draw heavily on three of my articles published in John Menadue’s Pearls and Irritations. I thank them for the permission to re-use passages. The publication’s contribution to public-policy debate in Australia should not be underestimated.

I wish to extend my thanks to both Professor Anne Twomey AO and to Tony Harris, a former auditor-general for New South Wales, for permission to quote extensively from their work. I also record my thanks to professors Michael Crommelin AO, Cheryl Saunders AO, and Geoffrey Lindell, and AG Whealy QC, in each case for permission to quote from their work.

I have also relied on publications from the Accountability Round Table and the judges who make up the National Integrity Committee.

The tireless work of several non-profit organisations in pursuit of reform in Australia’s federal political sphere is crucial to the development of these ideas and to the rising pressure on both major political parties to implement a strong anti-corruption commission and allied reforms. These organisations include the integrity project at Griffith University; the Accountability Round Table; the Centre for Public Integrity; the National Integrity Committee of The Australia Institute; Transparency International Australia; the Grattan Institute; and sundry anti-corruption bodies around Australia.

We are very grateful to the Hon. Sir Gerard Brennan AC, KBE for writing the foreword to this book, and honoured by what he has written.

I would also like to thank my family, particularly my wife. This book would not have been written without the assistance of my daughter, Lucy.

We are both very much indebted to Henry Rosenbloom and his staff at Scribe for their untiring work in publishing this book against an impossible deadline.

Introduction

In March 2021, allegations of a historical rape were made against the Commonwealth attorney-general, Christian Porter, who strongly denied them. The New South Wales police started an investigation, but closed the case on the basis of insufficient evidence. At this point, Porter announced that he would not stand down or resign, because to do so in response to an allegation would be contrary to the rule of law. The prime minister supported Porter, and both were heard to proclaim that Australia and its people rely on the rule of law. Both were stating a view of the rule of law that contradicts a key tenet of our democracy. Porter would, of course, be presumed innocent of any criminal charges brought against him in court proceedings, but ministers are accountable to parliament, which has the right to make any inquiries it sees fit to determine whether it retains confidence in them.

Australia does indeed live under the rule of law, but is that accepted by our politicians in the federal government? There is, on the contrary, every indication that the Coalition government first elected in 2013 has been using the rule of law as a convenient facade, while breaking the rule whenever it sees fit to do so.

Key areas of international criticism here relate to our nation’s shocking treatment of refugees and asylum seekers; discrimination against and continuing impoverishment of Australia’s First Nations’ peoples; and our inadequate response to climate change. Australia is a party to a number of United Nations international human rights treaties, but we either break them, disregard them, or disassociate ourselves from them at our whim. The most important are the International Convention on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, signed and ratified over 30 years ago. Despite these legal commitments to the treaties, in practice Australia’s compliance has been consistently defective. United Nations’ bodies have identified hundreds of ways in which Australia’s actions do not accord with international human rights standards and obligations, demonstrating a careless attitude to international rules and norms.

One of the most shocking examples relates to Australia’s closest neighbour, the Democratic Republic of Timor-Leste, which came into existence as a sovereign nation on 20 May 2002. Since then, Australia and Timor have been disputing the ownership of and control over oil and gas fields in the Timor Sea, most of which are on the Timorese side of the median line between the two countries. When the Timorese were constructing the new building in which their cabinet would hold meetings, Australian Secret Intelligent Service (ASIS) agents, posing as construction workers, placed bugs in meeting rooms to enable Australia to eavesdrop on the Timorese cabinet during negotiations that took place up to 2004.

A senior ASIS officer (later known as Witness K) felt prompted to complain about the legality of the bugging operation, which had led to Australia achieving very beneficial treaty terms and a large percentage of the revenue from the oilfields. The Timorese government was informed about what had happened, Bernard Collaery was briefed to represent it, and a case was taken to the Permanent Court of Arbitration in the Hague. Australia then sent agents of the Australian Security Intelligence Organisation (ASIO) into Collaery’s office, whereupon they seized his advice to Timor-Leste and a draft of Witness K’s affidavit. The Australian government’s actions were a breach of the UN Convention on Jurisdictional Immunity of States; the use of bugged information in negotiations was contractual fraud; and the confiscation of Timor’s documents was criminal trespass, an appalling invasion of legal client privilege, and a very serious contempt of court. In every respect, Australia’s actions were in breach of the rule of law, both domestic and international. Since then, Australia has prosecuted Witness K and Collaery, and taken no steps even to investigate the fraud that our country perpetrated on the Timorese. The prosecution of Collaery is still continuing in secret.

The Coalition government’s disregard for the rule of law and its thoroughgoing lack of integrity can be demonstrated repeatedly. In what became known as the Robodebt scandal, the government attempted to impose on many thousands of welfare recipients a liability to pay amounts to Centrelink that were said to be overpayments. The scheme was unlawful from the outset, and the amounts had been fixed by computer, often wrongly, without any court or legal authority. Hundreds of thousands of people were affected, the human cost was substantial, and there were a number of suicides.

Before the 2019 election, the attorney-general, who must have believed the Coalition was about to lose office, made over 50 appointments to the Administrative Appeals Tribunal, nearly all of whom were known to be supporters of the Coalition’s views and likely to make partisan decisions. The hardest hit were likely to be asylum seekers appealing rushed decisions.

One of the most contemptible aspects of the Australian government’s policies over the last 20 years has been its treatment of asylum seekers, including children, in detention camps offshore. These camps, which merit the technical description ‘concentration camps’, have been used, as far as possible, to keep refugees out of contact with the Australian community, away from legal advice, and away from medical treatment. The policy is intended to be as cruel as the government believes it can get away with, with the supposed aim of ‘preventing the boats restarting’ and forcing the refugees to return to their country of origin. Lord Bingham of Cornhill (the former Lord Chief Justice of England) said in a lecture on the rule of law: ‘A state which severely repressed or persecuted sections of its people could not in my view be regarded as observing the rule of law even if the transport of the persecuted minority to the concentration camp … were the subject of detailed laws duly enacted and scrupulously observed.’ ¹

The government claims to be ‘good economic managers’ as its highest electoral virtue. In recent years, it is has spent more than $4 billion on a series of programs superficially intended to advantage communities around the nation in various ways. Instead, these programs have been used for the government’s electoral purposes. It has defended this enormous outlay as ‘politics as usual’. In fact, the magnitude of the expenditure and the manner in which these schemes were operated both fit completely within Transparency International Australia’s definition of political corruption.

The programs included the Building Better Regions Fund, the Safer Communities Fund, and the Bushfire Local Economic Recovery Fund. The most notorious became known as the Sports Rorts (officially, the Community Sport Infrastructure Program) and as the Carpark Rorts. These were both investigated by the Australian National Audit Office (ANAO) after it received a request to examine them. This was a minor miracle, as the auditor-general is not equipped to carry out investigations; he has neither the budget nor the qualified personnel to investigate suspected corruption. The auditor-general also lacks the comprehensive investigative powers of an integrity commission. In the absence of such a commission, we do not know how many other grants programs have been similarly corrupted.

The ANAO found the Sports Rorts to have been a program under which $100 million was spent by the Coalition government for purely electoral purposes. This has been called pork-barrelling by some, in an attempt to dismiss the exercise as something insignificant or even normal, on the basis that ‘everybody does it’. If so, it is only one of many reasons why all politicians at the federal level need to be overseen by a national integrity commission. Even those who attempt to minimise the Sports Rorts accept that the program was an appalling political scandal. But in so doing, some assert that there was no private gain involved, so it was not corruption. That is, of course, nonsense. Those involved in the exercise were using illegal methods to get themselves re-elected. The private gain was the reward of political power, and the perks and benefits of office.

But even this understates it.